Commenting on decisions and news from the 11th Circuit and the Georgia Appellate Courts.

July 16, 2007

11th Circuit on Arbitration, Immigration and Mayor Campbell

Last week, the Eleventh Circuit finished out the week with a wide variety of issues, ranging from a decision on the scope of an NASD arbitration agreement, to an interesting immigration case addressing the United States' protection to the husband of a woman subject to China's family planning laws, to the reasonableness of the former Atlanta mayor's sentence for tax evasion.

Starting with the last case first, in USA v. Campbell, the Eleventh Circuit affirmed the reasonableness of former Atlanta Mayor Bill Campbell's sentence resulting from his conviction for tax evasion (although he was acquitted of RICO). Far from questioning the reasonableness of the sentence, the panel questioned whether it was sufficiently severe, but because (as the panel complained in a footnote) the government did not cross-appeal, the court did not have the opportunity to address whether the 30-month sentence should have been higher. And, the details of the opinion generally reflect the view that Campbell should consider himself lucky he was only convicted of tax evasion and only got 30 months.

Embedded in this opinion is the court's recognition of a potential issue brought to the fore by the recent U.S. Supreme Court case of Rita v. United States: the Eleventh Circuit (post-Booker) has, in contrast with other circuits, held that a sentence within the guidelines range is not necessarily presumptively reasonable. It did so for reasons that are potentially undermined by the reasoning in Rita, however, and in Rita the Supreme Court affirmed circuit decisions affording such a presumption. In the Campbell opinion, the court resists such a presumption, although seemingly inviting an en banc petition or cert petition on the issue. (Note: Campbell also challenged the district court's disqualification of his first counsel, Craig Gillen, whose partner, Buddy Parker, represented one of the coconspirators who pled guilty and was to testify against Campbell, but the Eleventh Circuit found the district court did not abuse its discretion in doing so.)

In Yi Qiang Yang v. Attorney General, the Eleventh Circuit encountered a dilemma that has interesting implications beyond those addressed in this case -- although the panel dodged answering the question here. Immigration precedent establishes that a lawfully-married husband of a Chinese woman who is threatened with family planning laws may apply for asylum in the United States. In this case, the applicant was married in a "traditional" wedding ceremony at home instead of a legal ceremony because the couple was under the legal age for marriage (husband and wife were 21 and 17, respectively). When his wife became pregnant, the Chinese authorities took her into custody and forced her to have an abortion because she was not legally married, and the husband fled after an altercation with authorities (while his wife remained in China). The Eleventh Circuit held that it was reasonable for the BIA to draw the line at lawful marriage, as opposed to traditional marriage, when deciding whether to grant asylum. (In other words, asylum protects only against the coercive family planning in an otherwise legal marriage, and not more broadly against China's view of when legal marriage is permissible.)

The broader question (with even broader implications), though, was looming: is it an Equal Protection violation to grant asylum to a lawfully-married couple on family-planning grounds, but to deny asylum to a couple who is not permitted, under prevailing law, to be lawfully married, even though they have had a traditional marriage and undertaken every other effort to demonstrate their commitment to each other? This question had not been raised in the immigration proceedings below, though, so the Eleventh Circuit declined to decide it.

Finally, in Becker v. Davis, Anne Becker (individually and as trustee for several trusts) sued several individuals and entities for providing faulty financial advice, enriching themselves at her and the trusts' expense. Becker had signed agreements containing an NASD arbitration clause, however, and the defendants moved to compel arbitration. Becker resisted, on grounds including that she, in her individual capacity, was not a signatory to the agreements, several of the defendants were also not signatories, and a claim for an accounting did not arise from the "business" in the agreements, as required by the arbitration clause.

The district court agreed with her on these grounds, but the Eleventh Circuit reversed. Becker's individual claims relied in part on terms of the same agreements that contained the arbitration clauses, so she was estopped from avoiding arbitration of those claims on the ground that she had not personally signed these agreements (although arbitration of non-contract claims such as breach of fiduciary duty might be avoided on those grounds). Additionally, that the defendants were not actually signatories did not allow Becker to avoid arbitration because she had asserted that these defendants were coconspirators with the signatories. And, finally, a claim for an accounting is not a separate claim, but is a claim for a remedy based on a substantive claim. Because the underlying substantive claims were subject to arbitration, the claim for an accounting were subject to arbitration as well. Practice note: don't plead yourself into arbitration if you don't want to be there.